Travis County Commssioners Court
March 9, 2004
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Item 18
Joe, I think we're at 18, right? 18 is to consider authorizing the county attorney's office to file a brief relating to hays county's request for a legal opinion from the state attorney general about county authority to regulate condominium rejet streams and take appropriate action.
>> Travis County's official acts to date have determined that condominiums are subdivisions and are subject to the regulations of Travis County for subdivision for the streets and drainage standards. So we treat them just as if they are subdivisions. And in two cases when these applications have come forward, we have told the applicants that and we have gone through the process of review and checked everything. And similar application has been filed in hays county. I guess they are not quite as confident as we are about the county's authority to regulate condominiums, so they have asked for a attorney general's opinion about whether counties have authority to regulate condominiums. We think it's important for Travis County to engage in the opinion-forming process because there's quite a bit at stake here. We realized when the first condominium regime came up the affordable for a [indiscernible]. They have streets, they have developments, they have all the -- for all practical purposes the same reason we have subdivision regulations to protect the health and welfare of the residents of those subdivisions would apply equally to condominiums. And so that's why we took the position that we did, that they are subdivisions. To have a a.g. Opinion rule otherwise would basically produce an avenue for many developments to go around and become unregulated in Travis County. That's why we think it's important to be there to express our legal opinion, and we feel very confident that tom nuckols is probably one of the experts in the state of Texas on this issue and would like to give his opinion to the a.g. On this matter.
>> I guess for those of us who have not given this a whole lot of thought, what is the difference between a condominium regime and any other sort of residential --
>> probably in the nature of the sale of the property. It's -- when you buy a lot in a subdivision, you are the owner of that lot and it's described by metes and bounds and you are the property holder of that lot. In a condominium it's more general purchase within a tract of property. So you become a -- perhaps a stockholder is the best way to put it in a common property. And so I think it's real any the nature of the ownership, the legal ownership of the property that's different between the two vehicles. And tom can probable give a much better legal opinion on the difference.
>> that's a pretty good explanation, joe. In the condominium situation, the fee simple title to the land is held by the condominium association. And the individual owner really has a possessry interest in their portion of it. But it's the fact ha the condominium association owns the fee simple title that leads the developers of condominiums to say, well, the property hasn't been subdivided, it's all still owned by one owner, the condominium association. But the other side of it and the side they don't emphasize enough, I think, is the fact that inside that piece of property, you may have 20 different people that have a possessry interest to their own space. And that's the subdivision of the property. You know. You've got 20 houses out there, and it's a condominium and somebody is sitting in their house one night and a burg la starts breaking through the window, they don't call the condominium association to call the police because the condominium association owns the land. The person that owns that house calls the police and says somebody is breaking into my house. They don't say, oh, somebody is breaking into the condominium association's property, let's go have a meeting of the condominium board so that they can vote to call the police and have this guy arrested. I mean it really breaks down to that. When you -- you know, these people own a separate and distinct possessry interest, exclusive right to the condominium.
>> it walks like a duck, it talks like a duck.
>> it just has a fancy name.
>> [inaudible] these analogies before we file that brief.
>> I am perplexed reading the letter to the hays county attorney, and it says here due to the possible consequences such as the one described above, road drainage annual water availability, county staff, hays county staff, sought the opinion of county law expert david b. Brooks for direction, who is a noted expert on county law. Mr. Brooks' legal analysis of the issue is attached. Mr. Brooks determined that the development should be considered a subdivision. So they got this backup from somebody who is a noted expert in county law. We know mr. Brooks. And the developer should be required to comply with all the applicable state and local rules relating to the subdivision requirements. Well, the attorneys for the developer stkpwrepld, so why are they asking for a attorney general's opinion because it's one of those things be careful what you are asking for. I am perplexed if they themselves felt they were solid but went ahead and got a second opinion from somebody who is considered to be a noted expert in county law, I mean mr. Brooks lectures and we know him well, he's a noted expert, even he says you are right on target, folks. Why would they then go, let's ask somebody else. I'm not getting it.
>> [indiscernible].
>> it's not attached to the opinion request that's on the a.g.'s website. That's where I got there. I'll have to call down to hays county.
>> they just didn't get the answer they wanted.
>> no, the county got the answer that they wanted and so the developer didn't. I'm not understand kwr-g the developer is not saying, well, I'm just going to show you, take you to court. They went ahead and kind of second guessed theps and opened up an interesting legal argument because it's like, you know, I'm not getting something here.
>> the attorney general gives opinions. Now, if we were to go and ask -- if we were to follow through through a lawsuit and we had a district judge make a ruling and a judgment, everyone would be bound by this situation. The attorney general's office does have an opinion that carries a lot of weight in legal circles. It's one that may be just enough threat for a developer who is working on a project to say, well, okay, i'll go ahead and comply. And so it's helpful but it's not absolutely determinative in a court of law to have a attorney general's opinions.
>> now, we have regulated these --
>> and we'll continue to do so. But if the a.g. Will in fact opine on this issue, it is in our best interest to go ahead and get our views over there. I mean I guess hays county realized that. And I assume that they asked other urban counties to weigh in on it?
>> I don't know that hays county has formally requested anything. I know the conference of urban counties is aware of this and is planning on filing something.
>> because it -- from time to time an issue would surface in a certain county and next thing we know a very high authority has kind of ruled on it and the adverse impact hits all of us. And other counties have kind of blamed us more than we've had a right to blame them.
>> I think it's extraordinarily important for Travis County to lay out the issues we see from our perspective. I think it's important for us to get our comments in there.
>> second Commissioner Sonleitner's motion. Was that a motion?
>> uh-huh.
>> any more discussion? All in favor? That passes by unanimous vote. Tom, when you are not working on solid waste, spend a little time on this issue.
>> is there a deadline?
>> there is. It's -- I believe it's end of March. So this would have -- if you want to review the brief, it will need to be on the 23rd or the 30th, I believe.
>> so should I put it down for the 23rd and if it's not --
>> sure.
>> during the agenda setting meeting i'll ask john to check with you and if it's not ready --
>> these are not new issues for Travis County or our staff or our legal division so it's like it's basically get a letter. Not starting from scratch.
Last Modified: Wednesday, March 9, 2004 6:57 PM